VIA FACSIMILE, ORIGINAL BY U.S. MAIL
This responds to your letter asserting a Fifth Amendment privilege on behalf of your client, Joe Dealer, in response to subpoenas to sole proprietorships, ABC Auto Sales ("ABC") and DEF Auto Sales ("DEF"). You are correct that, under United States v. Doe, 465 U.S. 605 (1984), requiring Mr. Dealer to produce many of his business records would violate the Fifth Amendment's bar against compelled self-incrimination. The Fifth Amendment, however, does not offer Mr. Dealer any protection against the compelled production of odometer statements, dealership registration records, tax records, and other records he is required by law to file or to maintain.
The Third Circuit (like other Circuits) has held that the Fifth Amendment privilege against compelled self-incrimination does not prohibit the compelled production from a sole proprietor of "required records." Matter of Grand Jury Empanelled March 19, 1980, 680 F.2d 327, 336 n. 15 (3d Cir. 1982) ("subpoenaed documents in the [sole proprietor's] possession which are required either to be kept by law or to be disclosed to a public agency should be produced for the grand jury's inspection"). In Doe, the case you cite, the Supreme Court expressly declined to decide whether the Fifth Amendment provided any protection against the compelled production of documents "required by law to be kept or disclosed to a public agency". Doe, 465 U.S. at 607 n.2. The Supreme Court, moreover, has recognized since Doe that there is no Fifth Amendment privilege protecting against production of required records. United States v. Hubbell, 530 U.S. 27, 35 (2000).
Furthermore, appellate cases since Doe have universally held that the "required records" exception is alive and well. In re Grand Jury Subpoena, 21 F.3d 226 (8th Cir. 1994); In re Grand Jury Subpoena, Underhill, 781 F.2d 64, 70 (6th Cir.) (compelling production of odometer statements from sole proprietorships under "required records" exception to Fifth Amendment), cert. denied, 479 U.S. 813 (1986); United States v. Lehman, 887 F.2d 1328, 1332 (7th Cir. 1989); In Re Grand Jury Proceedings (John Doe, M.D.), 801 F.2d 1164, 1169 (9th Cir. 1986); In Re Two Grand Jury Subpoenae Duces Tecum (John Doe, Esq.), 793 F.2d 69, 73 (2d Cir. 1986).
Therefore, although Mr. Dealer operated "ABC" and "DEF" as sole proprietorships, he can be compelled to produce to the grand jury all documents covered by the subpoena that "are required either to be kept by law or to be disclosed to a public agency." Matter of Grand Jury, supra. These "required records" include:
- Odometer Statements. Mr. Dealer is required by federal law to complete an odometer statement for each vehicle he sells and to maintain a copy of this statement. 49 U.S.C. §§ 32705(a) and 32706(d); 49 C.F.R. §§ 580.5 and 580.8. See Subpoena, ¶ 8(a).
- Applications for Registration; Certificates of Registration. Mr. Dealer was required by New York law to file an application of registration and obtain a certificate of registration for both "ABC" and "DEF." N.Y. Veh. & Traf. § 415(3) & (5). See Subpoena, ¶ 4.
- W-2 Forms. Mr. Dealer was required by federal law to complete W-2 forms and disclose them to the IRS. Heligman v. United States, 407 F.2d 448, 451-52 (8th Cir.), cert. denied, 395 U.S. 977 (1969); In Re Dr. Doe, 711 F.2d 1187, 1191 (2d Cir. 1983). See Subpoena, ¶ 3.
With respect to the three categories of documents just identified, Mr. Dealer does not have a Fifth Amendment "act of production" privilege. Notwithstanding the fact that he operated "ABC" and "DEF" as sole proprietorships, therefore, the subpoena lawfully requires the production of these records. Mr. Dealer is scheduled to appear, and is required to appear, before the Grand Jury on Friday, March 5, ____, at 3 p.m. This appearance can only be avoided by either (1) producing no later than March 2 the documents identified above to John Justice, Investigator, U.S. Department of Transportation, [address] or (2) filing a Motion to Quash. If you do not move to quash the subpoenas, or if Mr. Dealer fails to produce the records identified above to Mr. Justice by March 2 or to the Grand Jury on March 5, I will move to have him held in contempt.
[updated April 2009] [cited in JM 4-8.310]